Case Number

HCJ 3856/11

Date Decided

6-27-2013

Decision Type

Original

Document Type

Full Opinion

Abstract

[This abstract is not part of the Court's opinion and is provided for the reader's convenience. It has been translated from a Hebrew version prepared by Nevo Press Ltd. and is used with its kind permission.]

A petition against the decision of the Sharia Court of Appeals that it is not possible to appoint a female arbitrator under Section 130 of the Ottoman Family Law for divorce proceedings conducted before the court. According to the Sharia court, Section 130 of the Ottoman Family Law is based on the Maliki interpretation. Since the Malikis require that the arbitrators be men, women cannot be appointed as arbitrators.

The High Court of Justice (by Justice E. Arbel, joined by Deputy President E. Hayut and Justice N. Solberg) accepted the petition on the following grounds:

It is known that this Court does not sit as an appeals court for decisions of the religious courts. As such, in light of the authorities the law granted religious courts, the causes of actions in religious courts that are subject to intervention by this Court were strictly defined. One such cause of action justifying this Court’s intervention in the religious courts’ decisions is the court’s deviation from the provisions of a law that targets it. In the case at hand, the Petitioner – a Muslim woman, whose husband, Respondent 3, filed an “arbitration claim” against her with the Tayibe Sharia court, and whom the court required to appoint a male arbitrator rather than the female arbitrator she wanted – argued that the court ignored Section 1A(a) of the Equal Rights for Women Act, which provides that there shall be one law for women and men for purposes of every legal act, and that any statutory provision which, for purposes of any legal act, discriminates against a woman because she is a woman shall not be followed. According to the Sharia court the Act’s two exceptions apply here: the exception regarding laws of prohibition and permission; and the exception relating to the appointment of a person to a religious position.

The Equal Rights for Women Act was enacted as early as 1951, and its purpose was to maintain “complete and full equality for women – equality in rights and obligations, in the life of the state, society and market and in the entire network of laws.” The Act was recognized by this Court as having special status, superior to ordinary laws. The Act is directed at all of government authorities as well as all courts, and religious courts were explicitly required to follow it. According to the High Court of Justice, the Act’s center of gravity is in the general and broad provision anchored in Section 1A of the Act that: “There shall be one law for a woman and a man for purposes of every legal act.” This section was interpreted broadly as anchoring women’s right to equality not only for the purposes of any legal act, but also for any legal aspect whatsoever. It is further important to emphasize that this is a law that declares the state of existing law rather than constitutes it, since the principle of equality between the sexes existed before the Act was passed.

The application of the Equal Rights for Women Act is broad. Section 7(a) provides that every governmental authority is obligated to honor the rights under it. Section 7(b) expands its application to all courts and tribunals competent to address matters of personal status, unless all of parties agree to litigate according to the laws of their community.

In light of the Act’s purpose, its unique status and the principles upon which it relies, it is my opinion that the Act should be interpreted broadly while narrowly interpreting its exceptions.

The two exceptions relevant to the case here are the two central exceptions that exclude its application to religious courts. Section 5 of the Act provides that “this Act shall not infringe any legal prohibition and permission in connection with marriage and divorce.” And Section 7(c), which was added to the Act through a statutory amendment from 2000, provides that the provisions of the act shall not apply to an appointment to a religious position under religious law, including the appointment of rabbis and holders of judicial positions in religious courts.

The section that the Sharia court applied in the matter at hand is Section 130 of the Ottoman Family Law. This section established an additional way to dissolve a marriage in the event that disputes emerge between the couple, where each of them may demand a family “panel” or “council” be established. The council shall be comprised of one representative from the husband’s family and one representative from the wife’s family. The council must attempt to reconcile the couple, but upon failure, it must rule to dissolve the marriage and determine the scope of the dowry to be paid. If the first arbitrators that were appointed do not agree among themselves, additional arbitrators must be appointed or a third arbitrator must be appointed to decide.

Do the exceptions of the Law apply to the appointment of arbitrators under Section 130 of the Family Law? The first exception is the one detailed in Section 5 of the Law, that “This Act shall not infringe any legal prohibition and permission in connection with marriage and divorce.” In this context, the High Court of Justice ruled that the section was intended to apply substantive religious law that regulates the matters of divorce and not to the laws that apply to those authorized to implement such laws, and therefore the exception in Section 5 does not apply to the case at hand.

The main exception relevant here appears in Section 7(c) of the Equal Rights for Women Act, that: “(c) The provisions of this Act shall not apply to an appointment to a religious position under religious law, including the appointment of rabbis and holders of judicial positions in religious courts.” The section in fact includes two exceptions, whose application here must be examined. The first addresses the “appointment to a religious position under religious law,” and the second addresses the “appointment of holders of judicial positions in religious courts.”

As for the first exception, the High Court of Justice is willing to assume (even though this assumption is not free of difficulties) that the Family Law is a religious law and therefore the bottom part of the exception applies. Meaning, that the appointment of arbitrators is an appointment to a position under religious law. However, according to the position of the High Court of Justice, the legislature did not exclude any appointment to a position under religious law, but rather only the appointment to a religious position under religious law. The interpretation of the term “religious position” must be a position which requires some level of professionalism and expertise in religious law as well as the ability to exercise such law in the course of the position. The higher the level of professionalism and expertise in religious law that the position requires and the more religious law is actually exercised within the position, the more likely we are to see the position as a religious position, and vice versa.

The appointment of arbitrators under Section 130 of the Family Law does not meet such definition at all. The arbitrators are representatives of the disputing couple’s relatives. They are not required to have any familiarity with religious law, skills, understanding or qualification in this law. They have no professionalism or expertise in exercising the religious law. Even according to the Maliki school of thought, the characteristics are unrelated to the religious matter. Furthermore, the arbitrators are not required to exercise religious law in their position. The conclusion is, therefore, that the appointment of arbitrators is not a religious appointment under religious law, and therefore does not fall under this exception.

As for the second exception, is the appointment of arbitrators an appointment to a judicial position in the religious court? The answer to this question is also negative. On its face, it appears the sections’ interpretation should be limited only to the holders of judicial positions in actual religious courts, such as rabbinical judges or Qadis. However, even were we to assume that the exception should be interpreted in a broader sense, the appointment of arbitrators under Section 130 of the Family Law would not be included. In the Hamza case it was decided that the arbitrators’ decision is not final and is subject to Sharia courts’ absolute discretion. In practice, Sharia courts indeed intervene in arbitrators’ rulings. It follows that even under Section 130 of the Family Law the judicial position to rule in a divorce is granted to Qadis in Sharia courts, rather than arbitrators. The conclusion is that arbitrators cannot be perceived as holding any judicial position and that Section 7(c) does not apply to the appointment of arbitrators under Section 130 of the Family Law.

Once it is found that the exceptions of the Equal Rights for Women Act, as specified in Sections 5 and 7(c) of the Act, do not apply to the appointment of arbitrators under the Ottoman Family Law, the Sharia court should have taken the provisions of the Act into account and it failed to do so. Considering the provisions of the Equal Rights for Women Act would have led to the result that it is possible to appoint female arbitrators, and therefore, to the approval of the arbitrator suggested by the Petitioner. The conclusion that follows is that the Sharia court’s decision is invalid. The hearing shall be remanded to the Sharia court for the arbitration process to be continued, while granting the Petitioner the option of choosing a female arbitrator on her behalf. Hopefully this may open a window to equality and prevention of discrimination among officials in this field.

The High Court of Justice finds it appropriate to remark that it is possible to have reached the same result even had we assumed that the Equal Rights for Women Act did not apply here. There are a number of customary schools of thought in the Sharia law which the religious courts and the Ottoman legislator applied in a mixed fashion, without any absolute commitment to one school of thought or the other. Indeed, part of the Family Law is based on the Maliki school of thought that allows the appointment only of male arbitrators. However, there is also the Hanafi school of thought, which is customary in the Muslim world and upon which the Mejelle – and even most of the Family Law – are based. This allows the appointment of female arbitrators. Therefore, considering the principle of equality, the court should have preferred the school of thought that is consistent with this principle over the school of thought that is not. Especially given that in fact Sharia courts actually conduct themselves in a manner similar to the Hanafi school of thought, since they do not consider the arbitrators’ decision final, but rather exercise their discretion as to its confirmation.

Keywords

Administrative Law -- Judicial review, Islamic Law, Arbitration, Constitutional Law -- Equality Before the Law, Family Law -- Divorce

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